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Why Don’t You Both Shut Up?

By (June 1, 2016) One Comment

Free Speech: Ten Principles for an Interconnected WorldAshFreeSpeech
By Timothy Garton Ash
Yale University Press, 2016

Some nonfiction books seem to exist so the reader can signal that they don’t read some other type of nonfiction book. Thomas Friedman’s The World is Flat allows the business traveler to read a lightly reported business book while keeping up the pretense that they read “serious” things, not lightly reported business books. The forthcoming book from Timothy Garton Ash (an Oxford Professor and Senior Fellow at the Hoover Institution), Free Speech: Ten Principles for a Connected World, is for those on college campus who want to read a Thomas Friedman-style book, without being seen reading a Thomas Friedman-style book.

The United States currently finds itself embroiled in a series of political conflicts related to free speech and expression, as understood through the First Amendment. This past decade has seen the Supreme Court take up the First Amendment as a means to curb liberal legislation, echoing actions by the Supreme Court during the Gilded Age, when it used the 14th Amendment to hold back progressive and New Deal reforms. The 2010 Citizens United case opened the floodgates for more direct spending from moneyed interests, while Burwell (the “Hobby Lobby Case” concerning the right of a company to not cover contraceptives), allowed some corporations to claim religious rights. However, Ash’s book is not particularly concerned with the First Amendment; nor is it particularly interested with these ongoing political debates. Instead, the book is concerned with conflicts that arise when groups with different sets of values and norms interact via information technology.

When discussing online debates, it has long since become passé to note Godwin’s Law (to paraphrase: given enough time on a topic, someone is going to call someone else a Nazi). A modern corollary would add that any attempt by a service provider or moderator to change the rules of a medium or forum will lead to someone claiming their right to free speech is being violated. Ash’s book is not completely unsympathetic to this view. Throughout the work, Ash is suspicious of empowering institutional actors to control speech or shape an individual’s ability to find speech. Instead, he advocates for an unregulated market in speech, in which individuals can exercise individual choices over their behavior. It is a fundamentally Conservative solution, highly grounded in the so-called Movement Conservative worldview, in which governments are simultaneously domestically oppressive, but dangerously retreating in the face of lawless violence invading Western Civilization. This philosophical distrust of government and formal rules causes the book to fail to grapple with the internal tensions found in its proposed principles for global communication.

Quality of analysis aside, it is true that in the United States, the past decade has seen a series of controversies over free speech. These conflicts range from growing societal awareness of the treatment of women on social networking platforms, to questions about the role that the Internet plays in radicalizing “lone wolf” terrorists, and from the rights of governments to conduct electronic monitoring of communications to debates on college campuses over speech codes and trigger warnings. Free Speech, at least tangentially, touches on these topics, along with issues of European Hate Speech codes, the so-called “Great Firewall of China,” private ownership of quasi-public commons such as Facebook and YouTube, violence in response to unpopular speech, the right to have information removed as a form of speech, ethics in journalism, and the right to anonymous speech. Given the breadth of topics, it is not surprising that the book only skims the surface of these issues, rarely diving deep into the literature or exploring original research. Nonetheless, there is a common thread to his prescription for resolution of the problems.

In Free Speech, Ash is fundamentally suspicious of vesting power in institutions; in particular, the book cautions against giving institutions the power to regulate content, even if such content may distress members of a community. This position is informed by the difficulty he sees in setting standards when an audience for speech is potentially the entirety of humanity, thanks to the broadcasting power of electronic communications. To resolve these conflicts, he proposes common norms of behavior based upon three principles: diversity of values (with, as we’ll see, a notable exception in his attitudes towards religion), a commitment to openness, and mutual respect. It is difficult to object to these principles in general, but, as is often the case, the identification of broad values is relatively easy, but designing and implementing systems that can handle conflicts is hard. It is here that the book’s suspicion of institutions and odd ignorance of power dynamics undermines its argument.

The book seems oddly disengaged with the question of what to do when different principles come into conflict. To take one example from the book, Ash invokes the Westboro Baptist Church’s protesting of the funerals of American soldiers and abortion protestors who confront woman at clinics as examples of expressions that ultimately should not be regulated by the government:

Is it really OK for activists of the Westboro Baptist Church of Topeka, Kansas, who believe that America’s military casualties are God’s punishment for ‘the fag lifestyle of soul-damning, nation-destroying filth’, to hold up signs at the funerals of American soldiers saying “Thank God for Maimed Soldiers”? Imagine the feelings of a dead soldier’s mother on her way to that funeral. Is it legitimate freedom of expression for shouting crowds to confront young woman visiting an abortion clinic…

Westboro baptist protest protestWhat the book misses is the important distinction between these two specific examples and what they imply for regulating or not regulating expression. Few would deny that seeing protestors at the funeral of a loved one would cause intense pain, and likely violates a universal norm of respectful behavior. Yet despite this, the US does not generally recognize the right to bar protesters from public spaces based only on the content of their speech. In contrast, women being at abortion clinics are protected. At issue is not the question of women being spared hurtful speech but their right to exercise autonomy over their health and body.

Ash’s book places diversity of expression at the heart of free speech. However, in order to harmonize this value with the book’s other principles of conduct, it has to adopt some problematic viewpoints, particularly when it comes to religion. Simply put, Ash rejects religion as form of self-identification fully entitled to expression, asserting that “[f]or most of human history, people have felt a tension between religion and freedom of expression, and most of human kind still does.” To back up this claim, he cites European countries trying to revive blasphemy prosecutions, China’s repression of Falun Gong, and India’s colonial legacy laws against offending people based on their religion. Ash fails to address how the combination of prosecutorial overreach in Europe, the suppression of civil society in China, and the legacy of colonialism in Indian Jurisprudence imply an inherent tension between expression and religion. Nonetheless, he argues:

I have already rehearsed one argument why religion should enjoy less protection than an immutable characteristic such as color or gender. There is no rational argument against having skin that is black, brown, or white and you cannot change your skin. By contrast, there are plenty of rational arguments against the proposition of any religion – and you can change your religion.

Moreover, religion sits uncomfortably with secular liberal arguments for freedom of speech because it generally has a different relation to both freedom and speech. True freedom, it typically claims, is to be found not in the absence of external constraints but in voluntary submission to a higher cause.

Here, the book drifts very far from US legal tradition by rejecting the idea of religion as an identity which is entitled to protections similar to race, gender, or national origin. This is justified by what Ash sees as an uneasy relationship between religious faith and liberal (in the philosophical, not political sense) notions of secular, civil government. Unaddressed is why religion is given special consideration for potentially creating a belief set incompatible with secular government, while secular belief systems that explicitly reject liberal government are still accorded the principle of diversity. His proposition, that religion requires voluntary submission to a higher cause, could effectively describe any mass political movement or ideology. At the risk of demonstrating Godwin’s Law, that the book consistently argues for the repeal of German laws that disallow public denial of the Holocaust because of the way the laws can stifle free expression. The book even goes so far as to argue that students should not protest when speakers come to their campus with which the students may disagree. All secular viewpoints, however offensive, are generally given the benefit of the doubt. Yet any belief system predicated on faith is assumed to create tension with Ash’s first principle.

Compounding the problem with the book’s treatment of religion, is the singling out of Islam as particularly incompatible with free expression:

Has there been, over the last decades, a special problem with free speech and Islam? Yes, there has… The trouble with Islam has, however, been distinguished by four things: its scale, its impact on liberal democratic societies that particularly value freedom of expression, its association with terrorism, and the degree of intolerance shown by both governments and societies in majority Muslim states to adherents of other religions and of none.

The position that Islam has a special association with terrorism is asserted, but the book fails to explore, or source, this assumption, and seems to ignore other factors at play. For example, the US State Department estimates that 2014 saw over 13,000 incidents of terrorism, resulting in over 32,000 deaths. However, the vast bulk of this violence has been confined to a handful of conflict zones and five countries (Iraq, Afghanistan, Pakistan, Nigeria, and Syria) accounting for four out of five of those fatalities. While it is true that those five countries have a majority Muslim population, the more pertinent fact is that all five are either in the midst of a civil war, adjacent to a country with an ongoing civil war, have a large insurgent force threatening to plunge them into civil war, or some combination of the three. The book’s focus on free speech means, that on the topic of terrorism, it seems to miss the forest for the trees. It is inarguable that free expression and exchange of ideas is stifled by the threat of violent response and Europe, compared to the United States, faces a much greater threat from domestic terrorists, angry over free speech issues. However, while there is a clear threat to society when an angry young man is inspired by online media to travel to a lawless area of Syria, train in terrorism, and return home to carry out acts of violence, the principal issue is not the lack of robust debate in the face of terrorism, but rather that that an individual can travel to a warzone with relative ease to join an enemy of their state. The pertinent issue is not a question of Islam being compatible with free speech, but violence spreading from failing states that happen to be majority Islamic.

The book’s attempt to match policies to its principles is hampered by an underlying suspicion of organized institutions as a means for greater freedom. Ash generally rejects both government actions, such as laws banning hate speech, and private action, such as YouTube removing videos deemed offensive. Instead, Ash envisions individuals voluntarily embracing his solutions of openness and tolerance. How this change is supposed to come about is less than clear.

His response to populist outrage is a good illustration. When discussing how to implement norms of better conduct, Ash proposes politicians as a key bulwark against populist forces aligned against the core values proposed in the book:

Who else can do what else to uphold robust civility, without resorting to hate speech laws?… In 2004, an interesting revision was made to the 190-year-old Norwegian Constitution. After a detailed affirmation of the constitutional right to freedom of expression and information, Article 100 says: “It is the responsibility of the authorities of the State to create Conditions that facilitate open and enlightened public discourse.”

How? All political leaders can set and an example in the way they talk about minorities and human difference in all kinds in their own societies. Most leaders… speak out after a particularly shocking crime… Far fewer politicians are prepared to go against the prejudices of their voters on a regular basis. Chancellor Angela Merkel, for example, initially reacted to Thilo Sarrazin’s [an anti-immigration and anti-EU, leftwing populist] reported views by saying, ‘Such simplistically sweeping judgments are stupid and don’t get us any further’. Yet when his simplistically sweeping judgments turned out to be popular among her own conservative electorate, she temporized. She told her Christian Democratic party conference that she ‘takes seriously… the broad discussion about migrants of the Muslim faith’, and ‘it is after all not the case that we have too much Islam, but rather that we have too little Christianity’.…

For the democratic politician, it is so much easier to pass the task of combating hate speech to officials or judges, rather than risk losing electoral support by doing it yourself.

The problem, which the book itself identifies, is that in a democratic system political leadership faces enormous pressure to follow the preferences of popular demand, even if those demands are ill considered and violate liberal, pluralistic values. This also comes at a time when the general public is particularly distrustful of their leaders, further eroding the ability of political leaders to defy their constituents’ preferences. Ash acknowledges this pressure, but fails to address how it undermines his argument against legally empowered institutions that are more removed from populist passions.

This tension, in fact, has long since been understood to be a danger to democratic systems of government, and trying to resolve this problem has been a concern since at least Classical Greece. Ash, throughout the book, tries to illustrate when laws stifle free expression, such as a UK man being charged with hate speech for calling a police horse “gay.” However, what he seems to miss is the attorney’s adage that “bad facts make bad laws” i.e. that it is rarely a good idea to write a law or repeal a law, based upon a singular event. This focus on anecdotal danger also obscures the less visible problems caused by a lack of rules of conduct that can be enforced by a third party. For example, it is easy to see abuse of power when a flag for copyright violations causes YouTube to take down fan made tribute videos of the fans lip-synching to their favorite songs. Less visible, however, is a woman who quietly shuts down her Twitter account because the company lacks a formal process to stop online harassment.

By rejecting the basic power to enforce rules of conduct, Ash leaves few if any tools to enact his principles, beyond people voluntarily choosing to change their current behavior. It is one of the fundamental problems of Conservative social policy: powerful actors rarely submit their desires to the needs of the less powerful and there is little reason to think that interactions on the Internet would work differently. The book attempts to resolve the potential for cross-cultural conflict by implementing a non-enforceable code of conduct across the entire user base of the World Wide Web, Facebook, Twitter, and all other forms of electronic communication. Time may prove otherwise, but such a project seems destined to fail.

Aaron Rabiroff has worked as an attorney in Oregon, and currently lives in Silicon Valley. Surprisingly, he is not involved in the tech industry.